Re: Legal powers vs desired values
From: Philip Dowds (rphilipdowdsme.com)
Date: Fri, 28 Sep 2018 03:34:02 -0700 (PDT)
Each State has its own body of enabling legislative describing the powers and 
duties of an HOA or condo association; each association has distinctive bylaws 
that interpret and Implement (hopefully, correctly) this enabling legislation 
for each specific property.  In other words, there is no blanket legal answer 
to the question of how a community can or should be organized.

Having said that … it looks to me like cohousing — organized on principles of 
direct participation  and equivalence — always has to deal with several key 
governance questions:
     ? Who are the “members” of the association?  All resident adults?  
Teenagers, grandparents, and other relatives living in the member’s house?  
Unrelated tenants?  Or … just people who have their names on the deed to the 
dwelling unit?  Including absentee landlords?  (We might be surprised at how 
many cohos hew to the narrow definition of member = owner.)
     ? Can “plenary” — a meeting of the members of the association — supersede 
the elected Board?  Tell the Board what it must and must not do, in specific 
matters of controversy?  Or, is the power of plenary (the association) limited 
to recalling Board members, and holding an election to replace them?
     ? Can Board and/or plenary delegate power and duty to a committee / 
circle?  Can a committee be empowered to make rules about use of the workshop, 
or spend an annual budget of $1500 on garden maintenance, or dispute resolution?

At Cornerstone in Cambridge, MA, we’ve been working on these questions for 
nearly two decades; I’m not confident that the answers we’ve adopted would be 
appropriate for another community.

Thanks,
RPD

> On Sep 27, 2018, at 10:33 PM, Lynn Nadeau / Maraiah <welcome [at] 
> olympus.net> wrote:
> 
> RoseWind Cohousing, Port Townsend WA. Approaching 30 years in.
> Governance puzzle for well-established communities using a Homeowners' 
> Association structure: 
> We used to govern entirely based on consensus of those who constituted a 
> quorum at our regular meetings. A Steering Committee of 5 carefully-selected 
> members on rotating 2-year terms served as a coordinating committee, with 
> little license to engage in decision making except as directed by the 
> Membership. As a sort of dismissal of the typical hierarchical "corporate" 
> model, we defined our Board of Directors as all of our members.
> 
> In  the course of revising our Documents, a few years ago, we were in 
> conversation with our lawyer. Knowing that we have had problems with one 
> contentious and litigious household on several occasions, the lawyer pointed 
> out that if every member was on the Board, we could not exclude the problem 
> person from discussions/consultations with our lawyer about how to deal with 
> them. So no confidential strategizing. In order to circumvent that 
> vulnerability, on his advice we changed the definition of our Board to now be 
> the 5-member team that had been Steering.
> 
> Our legal documents, in line with HOA requirements in our State (Washington), 
> give very extensive legal rights to the Board: technically, legally, they now 
> have god-like powers to decide virtually anything/everything. We still want 
> the great majority of our decision making to come out of our big-group 
> consensus process. We attempted to write that in to the new system by dubbing 
> the big group the "Community Committee" and stating that the Board delegates 
> all but a limited number of legal and personnel issues to them (meaning to 
> all of us).
> 
> So instead of defining limited powers for our Steering Committee, we are now 
> in the position of needing to trust that our Board will choose not to 
> exercise their legal rights to bypass the consensus-based whole group 
> process. So far we have always had steering-and-now-Board teams of 5 who were 
> aligned with our core values, and trustworthy. But the need to trust such a 
> Board not to get power-hungry at some future time has some members anxious. 
> All things considered, would it be wise to go back to our old model? 
> 
> Has any other group dealt with something like this? Who has the bottom-line 
> power in your legal structure? Is this congruent with how you really 
> function? 
> 
> A strangely-heavy conundrum to sort out, in absolutely glorious golden 
> cool-breeze, warm-sunny September weather. The garden is laden with fruits 
> and vegetables--tomatoes, greens, broccoli, carrots, beets, onions, potatoes, 
> squash, raspberries, pears, apples, plus sunflowers, dahlias and other bright 
> blooms. I don't feel like hashing out legalities, just want to soak up this 
> delicious weather while savoring a piece of fresh-blackberry pie!
> 
> Maraiah Lynn Nadeau
> www.rosewind.org
> 
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> 

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